Mitchell v. State

Supreme Court of Georgia

April 16, 2018

MITCHELLv.THE STATE.

BOGGS,
JUSTICE.

Lewis
Mitchell Jr. was convicted of malice murder, aggravated
assault, and two counts of possession of a firearm in
commission of a felony, in connection with the killing of
Antonio Jermaine Mitchell
("Jermaine")[1] and the wounding of Desmond
Jones.[2] His amended motion for new trial was
denied, and he appeals, asserting that the evidence was
insufficient, that the trial court erred in allowing a
State's witness to be questioned as a hostile witness,
and that the trial court erred in allowing speculative
testimony from a forensic biologist. As part of the last
enumeration, he also asserts ineffective assistance of
counsel. For the reasons stated below, we affirm.

Construed
to support the verdict, the evidence showed that Cheryl Core
was Mitchell's girlfriend; she and her sister, Aianza
Wheeler, lived with Mitchell.[3] After the women performed at a
bachelor party, which Jones attended, Core became irate
because she believed they had not been paid enough. The next
evening, July 4, the two women, Mitchell, and Mitchell's
friend Lorenzo Countee met and planned to rob Jones in order
to get the money they believed they were owed. Core texted
Jones, and arranged to meet him and his friend, Jermaine, at
a nearby apartment complex. Mitchell drove his father's
truck to the apartment complex, and Core and Wheeler got out
of the truck some distance away and walked into the complex
in order to avoid suspicion. The women then met the two
victims, entered their SUV, and drove to a nearby gas station
then back to the apartment complex, ostensibly to meet a
nonexistent sister but in reality to facilitate the robbery.
While the victims and the women were sitting in the SUV
talking, "the shooting started happening" and the
women fled. Mitchell called the mother of his child to
retrieve the truck, and then they all went to church.
Mitchell told Core, "I shot two n ----- s basically for
23 dollars." Core also testified that Mitchell
threatened her, saying, "if anybody said anything, I
don't have a problem with killing anybody else."
Wheeler testified, "When [Mitchell] came into the house
he said he can't believe he killed him two n ----- s. He
can't wait to make the news."

Countee's
girlfriend, Ashley Staten, testified that she was riding in
Mitchell's gray Ford truck with Core, Wheeler, Countee,
and Mitchell, whom she knew. When the others began talking
about robbing someone, and Core was apparently arranging a
meeting by phone, Staten became nervous. When Mitchell got
out of the truck, put on a ski mask and jacket, and pulled a
"big, black gun" out of a pillowcase, Staten got
out of the truck and ran away. When she saw Mitchell later,
he said that he "had shot him two n ----- s."

Jones
was shot five or six times in the hand, jaw, shoulder, back,
and neck. He passed out, but regained consciousness and
called 911. Police arrived in response to the call, but
Jermaine was already dead. The medical examiner testified
that Jermaine was shot five times, severing his spine and
damaging his carotid artery. The cause of death was gunshot
wounds to the chest and neck. A police detective found 11
expended Wolf brand .223 Remington cartridge cases on the
scene, all fired from the same firearm. Police found a trash
bag outside Mitchell's former apartment nearby containing
a box of Wolf brand .223 Remington cartridges, receipts in
Mitchell's name, and a high school report card with
Mitchell's name on it.[4] Police photographed and recorded the
license number of a gray Ford pickup truck on the scene and
traced it to Mitchell's father. They also found a ski
mask and a jacket on top of an air conditioning unit under a
nearby building. A set of keys in the jacket pocket included
an auto parts reward card registered to Mitchell or his
father. Mitchell acknowledged to police that the keys were
his, but said he didn't know how they ended up at the
crime scene. A witness for the defense testified that he
heard what he first thought were firecrackers because it was
the Fourth of July, then saw a man in a dark colored jacket
standing by the driver's door of a red SUV, and saw a
passenger jump out and flee. Only when he heard a woman
screaming did he realize, "I've just seen a
shooting." He described the shooter as wearing a dark
top and something on his head that could have been a hoodie
or a mask.

1.
Mitchell first contends that the evidence was insufficient
because no witness saw Mitchell fire a weapon, no weapon was
ever recovered, and no fingerprint or DNA evidence supported
the convictions. He asserts that an uncorroborated admission
is insufficient to support a conviction, citing former OCGA
§ 24-3-53, in effect at the time of trial,
[5]Miller v. State, 268 Ga. 1 (485 S.E.2d 752) (1997),
and Burns v. State, 188 Ga. 22, 27 (2) (2 S.E.2d
627) (1939). While Mitchell fails to note the distinction
between a confession and an admission, see, e.g., English
v. State, 300 Ga. 471, 473-474 (2) (796 S.E.2d 258)
(2017), the record does not support his contentions in any
event.

Viewed
in the light most favorable to the verdict, the evidence of
Mitchell's participation in the crime is sufficient to
support his convictions. In addition to his statements to
multiple witnesses, he was placed at the scene by
codefendants as well as other witnesses and evidence. One
witness saw him don a mask and jacket and take out a
"big, black gun" immediately before the shooting; a
mask and jacket were recovered from the scene, with
Mitchell's keys in the pocket. He discussed committing
the robbery beforehand in the presence of three witnesses,
and the truck described by these and other witnesses was
recovered from the scene and was registered to Mitchell's
father. A trash bag outside of Mitchell's former
apartment contained a box of the same brand and caliber of
ammunition used in the murder, along with various personal
papers in Mitchell's name. Whether his three statements
to witnesses that he shot two people amounted to confessions
or merely admissions, other evidence was sufficient
corroboration. "Although an uncorroborated confession
cannot support a conviction under OCGA § 24-3-53,
corroboration of a confession in any particular satisfies the
requirements of the statute." (Citations and punctuation
omitted.) Miller, supra, 268 Ga. at 2. "As long
as there is some competent evidence, even though
contradicted, to support each fact necessary for the
state's case, the jury's verdict will be
upheld." (Citation and footnote omitted.) Jackson v.
State, 271 Ga.App. 278, 280 (1) (a) (609 S.E.2d 207)
(2005). The evidence was sufficient under Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
(1979).

2.
Mitchell contends that the trial court erred in allowing the
mother of his child to be questioned by the State as a
hostile witness. This witness was called by the State and
testified that she could remember talking to the police, but
could not remember anything she said to them. She avoided
responding to the State's question regarding whether she
had visited appellant approximately 55 times in jail, then
when asked, "You'd rather not be here today, would
you?" responded, "Okay." The State requested
that she be ruled a hostile witness, and the trial court
stated, "Well, I'll just give you some latitude,
[counsel], and we'll just see how it goes." The
witness was then asked if she was reluctant to testify; she
responded, "I'm not testifying, " reiterated
that she did not remember what was said in her police
interview, and agreed that she had "volunteered very
quickly that [she] didn't give a written statement."
A short colloquy ensued during which Mitchell's counsel
acknowledged, "I think he's got a right, I guess, to
ask about the statements." The trial court never ruled
explicitly that she was a hostile witness, but declared,
"I'll let you proceed and you can lead the
witness." In response to the State's further
questions, the witness said that she remembered nothing of
what she told police investigators.

Citing
Hayes v. State, 268 Ga. 809 (6) (493 S.E.2d 169)
(1997), Mitchell asserts that the State must demonstrate that
"the witness is nervous, reluctant, and
hostile" (emphasis supplied) before the trial court has
discretion to allow leading questions. This is not a correct
statement of the law. Hayes states rather that
"the trial court has the discretion to allow leading
questions on direct examination, when a witness is nervous,
or reluctant, or hostile." (Citations
omitted; emphasis supplied.) Id. at 812-813 (6).
When a witness "demonstrated a reluctance to tell what
[she] knew about the shootings . . . the trial court had
great latitude to permit the assistant district attorney to
treat [the witness] as a hostile witness and propound leading
questions." Knight v. State, 266 Ga. 47, 49 (4)
(b) (464 S.E.2d 201) (1995). "It would be a rare case in
which the trial court's exercise of discretion on this
issue would warrant reversal." Fugate v. State,
263 Ga. 260, 265 (10) (431 S.E.2d 104) (1993); see also
former OCGA § 24-9-63. Here, the witness obviously was
reluctant to testify, and the trial court did not abuse its
discretion.

3. At
trial, the State called a forensic biologist who testified
that she compared samples taken from the ski mask recovered
from the scene with the DNA profiles of Mitchell, Wheeler,
and Jermaine, and the DNA found on the mask did not match any
of the known samples. The prosecutor then asked if it was
possible that Mitchell had worn the mask, and the witness
responded that it was possible. When asked "how can that
be?", the witness responded that normally saliva would
be deposited on a mask by talking, sneezing or coughing, and
agreed that sometimes she received "masks with no saliva
on them." The witness agreed with the prosecutor's
statement that she could testify only that she found no
saliva belonging to Mitchell, but that she "cannot
exclude that he could have worn it."

Mitchell
contends that the trial court erred in allowing the witness
to testify that the absence of Mitchell's DNA on the ski
mask recovered from the scene did not rule out the
possibility that he wore it. He asserts that the
"specific evidence . . . proves that Lewis Mitchell, Jr.
did not wear the ski mask because his DNA was not on
it." But Mitchell failed to raise any objection to the
witness' testimony at trial, and this issue is therefore
waived. Butts v. State, 273 Ga. 760, 769 (20) (546
S.E.2d 472) (2001).[6] Moreover, "[i]n criminal cases, the
opinions of experts on any question of science, skill, trade,
or like questions shall always be admissible; and such
opinions may be given on the facts as proved by other
witnesses." Former OCGA § 24-9-67.[7] Testimony
regarding reasons for the presence or absence of DNA on a
sample falls within that scope. See, e.g., Bates v.
State, 293 Ga. 855, 857 (1) (750 S.E.2d 323) (2013)
(forensic biologist testified to reasons for absence of DNA
evidence).

To the
extent that Mitchell, in one sentence as part of this
enumeration, raises the contention that his trial counsel was
ineffective in failing to object to this testimony, he has
failed to meet his admittedly heavy burden, see Kimmelman
v. Morrison, 477 U.S. 365, 382 (II) (C) (106 S.Ct. 2574,
91 L.Ed.2d 305) (1986), to show that his lawyer performed his
duties at trial in an objectively unreasonable way,
considering all the circumstances, and in the light of
prevailing professional norms. Strickland v.
Washington, 466 U.S. 668, 687-688 (III) (A) (104 S.Ct.
2052, 80 L.Ed.2d 674) (1984).[8] Mitchell failed to question his
trial counsel on this point at the hearing on his motion for
new trial, and "trial counsel's decisions are
presumed to be strategic and thus insufficient to support an
ineffective assistance of counsel claim." (Citations and
punctuation omitted.) Bright v. State, 292 Ga. 273,
275 (2) (a) (736 S.E.2d 380) (2013). Mitchell has not
overcome this presumption. The record shows that
Mitchell's counsel extensively cross-examined the expert
on her conclusions, eliciting an admission from the witness
that no studies supported her testimony, reiterating the
absence of DNA evidence implicating Mitchell, and introducing
into evidence the expert's report containing that
finding. Mitchell therefore has failed to show ineffective
assistance of trial counsel.

Judgment
affirmed.

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